Because We Can

[IDemo]

How the White House's devotion to presidential power has undermined the war on terror

By Daniel Klaidman
Newsweek
Updated: 7:00 p.m. ET Jan. 6, 2006

Jan. 6, 2006 - To many people, the most perplexing aspect of the Bush administration’s domestic spying program is that it was largely unnecessary. President George Bush could have simply invoked the emergency provisions of the Foreign Intelligence Surveillance Act, which would have allowed the government to eavesdrop on suspected terrorists 72 hours before receiving authorization from the FISA court. Alternatively, the White House could have gone to Congress to amend the FISA statute. So why did the White House take such a controversial step, one that would inevitably open it up to serious charges of violating the civil liberties of American citizens? The answer may be as simple as this: a zealous belief that it could, regardless of whether doing so was necessary.

The administration’s biggest mistakes in fighting the war on terror have been the product of a willful defiance of the traditional rules of warfare. Bush understood instinctively that the United States needed more creative thinking and a new flexibility to prevail against an enemy as vicious and unconventional as Al Qaeda. But a small, powerful group of ideologically committed Bush administration officials, led by Vice President Dick Cheney, had a more far-reaching agenda: to prove at virtually every turn that the Constitution vests in the president near unfettered powers in the conduct of national security policy. The principle became such an article of faith that upholding it often trumped the wisdom—and necessity—of individual policies. Playing out behind the scenes was a bitter struggle between the proponents of presidential supremacy during wartime and traditionalists, often career civil servants, who wanted to maintain the balance of power. A healthy tension between the two should serve as an important check on overreaching by ideologues or on the indolence of time-serving bureaucrats.

But for the Cheneyites, the reflexive response to push back has been to dig in, seek no accommodation and tolerate little dissent. As a result, the administration formulated a series of policies—from Guantanamo to Abu Ghraib—that have weakened America’s hand in the world and sown distrust at home. The irony is that Cheney could end up eroding the very principles he is so ardently seeking to strengthen. Lately, the administration has been fighting—and sometimes losing—a two-front war against Congress and the federal courts as these branches seek to pull back the executives reins, if ever so slightly. Earlier this month, legislators forced the White House to accept a ban against cruel, inhuman and degrading treatment of detainees, removing any ambiguity in the law, even in “ticking time bomb” cases where harsh interrogation methods could foil plots to kill thousands. And the federal courts have intervened to provide detainees held outside of the civilian legal system the right of appeal and other procedural protections.

The pity in the administration’s approach is that its initial impulse was on the mark. Cheney is right that in the post-Watergate and Vietnam era, the executive branch lost some of its vigor as Congress asserted itself in national security matters. No one should be misty-eye about the bad-old-days of black bag jobs and illegal mail openings. But there was a price to pay for presidential deference. Our law enforcement and intelligence agencies grew risk averse, unwilling to take some necessary chances for fear of being hauled before congressional committees or exposed by investigative reporters. Power shifted to lawyers, hill staffers and reporters and away from the executive. The 9/11 Commission showed, for example, that a more reasonable interpretation of the ban on assassinations might not have precluded the Clinton administration from taking out Osama bin Laden. (During the Clinton years, the CIA believed it could only kill bin Laden if it were in the context of a capture operation.) The culture of lawyerly caution rose to heights of absurdity even after the attacks of September 11. When President Bush impulsively, if infelicitously, vowed to capture bin Laden “dead or alive,” the top NSC lawyer fired off an e-mail to Alberto Gonzales warning the then-White House counsel that such a threat could expose the president to criminal prosecution for violating international law.

http://www.msnbc.msn.com/id/10739869/site/newsweek/site/newsweek/

[libodem]

1. He should be exposed to criminal prosecution

for violating international law. He has crapped all over the Geneva Convention.